Division I of the Washington Court of Appeals recently issued an opinion parsing the difficult intersection of the doctor-patient and attorney-client privileges in medical malpractice cases. In Snyder v. Virginia Mason Medical Center, 2024 WL 419279 (Wn. App. Feb. 5, 2024) (unpublished), the plaintiff alleged medical negligence during surgery at Virginia Mason Medical Center. Virginia Mason and the lead surgeon were the only defendants. Three other doctors were involved in the surgery but had since left Virginia Mason. Virginia Mason provided the latter three with separate counsel, but they were not parties to the case.
During discovery, a dispute arose over the extent, if any, Virginia Mason’s counsel could contact the three non-party doctors outside the presence of Snyder’s lawyer. Under Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1998), defense counsel in medical malpractice cases are generally prohibited from contacting a claimant’s treating physicians ex parte to protect the physician-patient privilege as applied to medical information beyond the treatment at issue. Youngs v. PeaceHealth, 179 Wn.2d 645, 316 P.3d 1035 (2014), tempered Loudon in the corporate context by holding that defense counsel for a corporate entity like a hospital could contact its employee-physicians directly about the treatment at issue and those conversations would fall within the corporate employer’s attorney-client privilege. Hermanson v. MultiCare Health Sys., Inc., 196 Wn.2d 578, 475 P.3d 484 (2020), extended Youngs to independent contractor physicians who, while not direct employees of a hospital, are the functional equivalent.
In Snyder, however, the doctors were former employees by the time they were contacted. In Newman v. Highland School District No. 203, 186 Wn.2d 769, 381 P.3d 1188 (2016), the Supreme Court found that the contacts between corporate counsel and former employees are not generally protected by the attorney-client privilege. Snyder argued, therefore, that Virginia Mason’s contacts with the former employee-doctors did not fall within Youngs and instead were prohibited by Loudon. On discretionary review of that narrow question, the Court of Appeals concluded that because the non-party doctors were former employees, they could not be contacted ex parte under Loudon and instead defense counsel would either need to take their depositions as fact witnesses or conduct informal interviews with Snyder’s counsel present.
Snyder merits close review by counsel on both sides of the aisle in medical malpractice litigation as it succinctly summarizes the key decisions at the complicated interface between the doctor-patient and attorney-client privileges.
